STATE OF OHIO, Plaintiff-Appellee, - vs - JOHN BURKHEAD, Defendant-Appellant.
CASE NO. CA2014-02-028
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/23/2015
[Cite as State v. Burkhead, 2015-Ohio-1085.]
M. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-08-1239
Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, John Burkhead, appeals his sentence in the Butler County Court of Common Pleas for operating a vehicle while under the influence of alcohol with an accompanying habitual offender specification. For the reasons stated below, we affirm in part and reverse in part the decision of the trial court.
{¶ 2} On July 10, 2013, appellant was arrested for operating a vehicle while under the influence of alcohol (OVI). Appellant was indicted by a grand jury of OVI in violation of
{¶ 3} The case proceeded to a jury trial. Appellant stipulated that he had 5 or more prior OVI convictions within the past 20 years. The jury found appellant guilty of OVI and the habitual offender specification. The trial court then sentenced appellant to five years for the OVI conviction and an additional four years for the specification and ordered the sentences to be served consecutively. The trial court later journalized its findings in the judgment of conviction entry which stated that appellant was found guilty of
{¶ 4} Appellant now appeals, asserting three assignments of error. For ease of discussion, we will address the first and second assignments of error together.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT‘S SENTENCE OF APPELLANT IS CLEARLY AND CONVINCINGLY CONTRARY TO LAW.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT FAILED TO COMPLY WITH THE REQUIREMENTS OF [
{¶ 9} Appellant alleges the court erred in imposing (1) a mandatory sentence for his OVI conviction, (2) a five-year sentence for the OVI as the pertinent sentencing statutes conflict, (3) a mandatory four-year sentence for the habitual offender specification, and (4) consecutive sentences for the OVI offense and habitual offender specification without making
{¶ 10} We review felony sentences pursuant to the standard of review set forth in
INTRODUCTION AND STATE v. STURGILL
{¶ 11} Appellant argues the sentencing court made multiple errors in his sentence and points to various provisions of the pertinent statutes,
{¶ 12} In Sturgill, we held that when an offender is convicted of a third-degree felony OVI and an accompanying habitual offender specification,
{¶ 13} Upon further reflection, we find that Sturgill was misguided and we hereby overrule Sturgill and its progeny to the extent it held that when an offender is convicted of a third-degree felony OVI and an accompanying habitual offender specification,
ANALYSIS
{¶ 14}
Whoever violates * * * (A)(2) of this section is guilty of operating a vehicle under the influence of alcohol * * *. The court shall sentence the offender * * * under Chapter 2929. of the Revised Code, except as otherwise authorized or required by divisions (G)(1)(a) to (e) of this section.
There are two items of significance in
{¶ 15}
If the sentence is being imposed for a violation of division * * *(A)(2) of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code * * *. The court may impose a prison term in addition to the mandatory prison term. * * *
Therefore,
{¶ 16}
Imposition of a mandatory additional prison term of one, two, three, four, or five years upon an offender under division (G)(2) of section 2929.13 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging a felony violation of division (A) of section 4511.19 of the Revised Code specifies that the offender, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more equivalent offenses.
Similar to
{¶ 17}
{¶ 18} In Sturgill, this court found that the defendant‘s sentence for the
{¶ 19}
{¶ 20} The statute goes on to provide,
In addition to the mandatory prison term, * * * and if the offender is being sentenced for a third-degree felony OVI offense, the sentencing court may sentence the offender to an additional prison term of any duration specified in division (A)(3) of this section. The total of the additional prison term imposed under division (B)(4) * * * shall equal one of the authorized prison terms specified in division (A)(3) of this section for a third degree felony OVI offense.
(Emphasis added.)
{¶ 21} Consequently, when an offender is convicted of a third-degree felony OVI offense under
{¶ 22} In this case, appellant was sentenced to a mandatory prison term of four years for the habitual offender specification and a mandatory prison term of five years in regards to his underlying OVI conviction and was ordered to serve the sentences consecutively. Appellant‘s sentence to a mandatory prison term of four years for the
{¶ 23} However, we find the trial court properly ordered appellant to serve the sentence for the OVI offense and the habitual offender specification consecutively. Pursuant to
{¶ 25} Appellant also complains that the sentences he received were contrary to law because the trial court referenced
{¶ 26} Finally, appellant claims the sentence is contrary to law because the aggregate sentence for the habitual offender specification and the underlying OVI offense exceeded five years in violation of
{¶ 27} As mentioned above,
{¶ 28} The five years cumulative total expressed in
{¶ 29} For the same reason set forth in the preceding paragraph, appellant‘s additional prison term for the underlying OVI offense is not subject to reduction by 120 days as
* * * if the offender is being sentenced for a third-degree felony OVI offense, the sentencing court may sentence the offender to an additional prison term of any duration specified in division (A)(3) of this section. In either case, the additional prison term imposed shall be reduced by the sixty or one hundred twenty days imposed upon the offender as the mandatory prison term.
(Emphasis added.) Appellant was not subject to the mandatory 120-day prison term but rather to a separate mandatory prison term of one, two, three, four, or five years for having been convicted of the habitual offender specification.
{¶ 30} Therefore, appellant‘s sentence to a four-year mandatory prison term for the habitual offender specification is within the permissible statutory range and not contrary to law. However, appellant‘s five-year mandatory prison sentence for the underlying OVI offense is not within the permissible statutory range and is contrary to law. Appellant‘s first assignment of error is sustained. Appellant‘s second assignment of error is overruled.
{¶ 31} Assignment of Error No. 3:
{¶ 32} THE TRIAL COURT VIOLATED APPELLANT‘S DUE PROCESS RIGHTS AND EQUAL PROTECTION RIGHTS WHEN IT SENTENCED HIM FOR BOTH THE OVI OFFENSE AND THE REPEAT OFFENDER SPECIFICATION.
{¶ 33} Appellant argues that the sentence he received for the specification under
{¶ 34} Appellant did not raise the issue of the constitutionality of
{¶ 35} Even if we were to consider appellant‘s constitutional arguments, this court has already determined that the habitual offender specification found in
{¶ 36} We reasoned that
We disagree with [defendant‘s] contention that R.C. 2941.1413 denies equal protection of the laws to repeat OVI offenders simply because the law leaves it to the prosecutor‘s discretion to insert—or not insert—the specification into the indictment. It is axiomatic that the decision about what charge to file or bring before the grand jury generally rests within the discretion of the prosecutor. It will not be presumed that a prosecutor‘s decision to prosecute has been invidious or in bad faith, and [the defendant] has offered no argument that would call into question the rationale for the discretion that our legal system traditionally affords the prosecutor.
(Citations omitted.) Hartsook at ¶ 47.
{¶ 37} Additionally, we found the cumulative punishment the legislature sought to impose under
{¶ 38} Therefore, we find that the habitual offender specification in
{¶ 39} Appellant‘s third assignment of error is overruled.
{¶ 40} Accordingly, appellant‘s sentence related to his underlying OVI conviction is contrary to law. We vacate appellant‘s sentence for his underlying OVI conviction and remand this matter to the trial court for resentencing for the underlying OVI conviction in accordance with
{¶ 41} Judgment affirmed in part, reversed in part and remanded.
PIPER, P.J., and HENDRICKSON, J., concur.